5th Cir. widens federal courts' split over LGBT protections

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Dive Brief:

Discrimination on the basis of sexual orientation is not prohibited by Title VII of the Civil Rights Act of 1964, the 5th U.S. Circuit Court of Appeals ruled Wednesday, affirming its 1979 holding (Wittmer v. Phillips 66 Company, No. 18-20251 (5th Cir. Feb. 6, 2019)).

Reviewing a district court's ruling that said the appellate court hadn't weighed on the issue, the 5th Circuit said it held in Blum v. Gulf Oil Corp. that "Title VII does not prohibit discrimination on the basis of sexual orientation." The lower court made no mention of Blum in its ruling, the 5th Circuit said, reminding it that "Blum remains binding precedent in this circuit to this day." Without an intervening U.S. Supreme Court decision, three-judge panels generally can't overturn circuit precedent; the full court must do so — although the Wittmer judges didn't express a desire to do so as some other panels have done.

In affirming its 1979 ruling, the 5th Circuit has clearly aligned itself with the 11th Circuit's position that Title VII doesn't prohibit employment discrimination based on sexual orientation. The 2nd and 7th circuits have ruled oppositely, while the 6th held in Stephens v. R.G. &. G.R. Harris Funeral Homes, Inc. that Title VII protects employees from discrimination on the basis of either their transgender — or transitioning — status or their failure to conform to sex stereotypes.

Dive Insight:

As the federal circuit split over the question of sexual orientation and transgender discrimination under Title VII deepens, pressure increases on the Supreme Court to address the issue. The High Court has previously declined to do so, but now has new petitions pending.

Federal agencies are similarly divided by the question. The U.S. Equal Employment Opportunity Commission (EEOC) takes the position that Title VII prohibits LGBT discrimination, while the U.S. Department of Justice has argued the contrary. The two entities filed opposing briefs in Stephens, solidifying the divide. DOJ also has argued that the circuit split over transgender status discrimination is not as deep as that over sexual orientation discrimination. If the High Court refuses to hear the latter, DOJ believes it should similarly not hear the former.

In a recent interview with HR Dive, former EEOC Commissioner Chai Feldblum said the commission played a role in creating the split over Title VII by initially arguing that an "artificial exclusion" existed between sexual orientation and gender identity on one side, and Title VII's definition of the term "sex" on the other. Feldblum called this "an absurd position as a matter of simple common sense" that courts have since taken up. In recent years, EEOC has been assertive in its new position, even as religious groups and other entities have challenged its guidance.

At the state level, laws prohibiting LGBT discrimination aren't an unfamiliar sight. New York state recently passed its Gender Expression Non-Discrimination Act prohibiting discrimination on the basis of gender identity or gender expression, joining at least 21 other states and the District of Columbia that have prohibited employment discrimination on the basis of gender identity. Some experts also have suggested that employers can choose to be proactive in confronting the issue, for example, by putting processes in place to support individuals undergoing a gender transition and/or providing certain benefits options to aid in that process.